Posted by Eric Posner:
The decline of the universal jurisdiction statute.
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242925435
Reports out today indicate that Spain is reconsidering its universal
jurisdiction statute and may repeal or restrict it. A universal
jurisdiction statute gives courts jurisdiction over international
crimes that do not meet ordinary jurisdictional requirements�that is,
do not take place on the state�s territory, or involve the state�s
nationals as perpetrators or victims. Here is the [1]WSJ:
But the investigations by the judges, who are independent from the
executive and legislative branches, have become a growing headache
for the Spanish government. The Chinese government warned Spain
that bilateral relations could be damaged over the case regarding
Tibet crackdowns. The Israeli government strongly criticized the
investigation into its 2002 attack on a Hamas leader, which killed
14 other people. Israeli Prime Minister Benjamin Netanyahu said the
case "makes a mockery out of international law."
The U.S. has publicly taken a softer line. Behind the scenes,
however, U.S. officials have met with the Spanish government and
its prosecutors to try to halt the two cases related to the U.S.
prison camp, according to officials of both countries.
��
Critics say the National Court judges should focus on slimming down
the backlog of domestic cases that sometimes stretch back more than
a decade. Government prosecutors also say that cases involving
events in far-flung countries have little chance of succeeding
without cooperation from the government of the country where the
events occurred.
So far, only one case involved a clear-cut win: In 2005, Judge
Garzón secured the conviction of a former Argentine military
officer, Adolfo Scilingo, for throwing drugged prisoners from
planes.
The last point is worth pondering. These statutes have been around for
quite some time. They are on the books of dozens of countries, which
have duly adopted them in order to comply with international treaties,
such as the Convention Against Torture, which obliges states to
prosecute violations that occur anywhere in the world. Amnesty
International has made much of these statutes, [2]claiming on the
basis of state practice that domestic prosecution of international
crimes ion the basis of universal jurisdiction is an established
principle of international law. But as AI itself concedes,
prosecutions and convictions are as rare as hen�s teeth. States
legislate but do not act. Restrictions in the statutes, plus in some
cases political control over prosecution (which is otherwise
unacceptable in inquisitorial systems), do the job. Where they do act,
as Spain is learning, they run into trouble.
For an earlier post on universal jurisdiction statutes, which
expressed skepticism that former Bush administration officials would
be prosecuted under them, see [3]here. I acknowledged that
investigating judges in Spain are independent of political control and
thus can do what they want, and this could cause trouble for
vacationing ex-officials. But I was probably too cautious. It is
becoming clear that governments are happy enough to enact universal
jurisdiction statutes so as to make a show of keeping their treaty
obligations�just as long as they don�t have to use them.
References
1. http://online.wsj.com/article/SB124276949318736375.html
2.
http://www.amnesty.org/en/library/asset/IOR53/020/2001/en/dom-IOR530202001en.html
3. http://volokh.com/posts/1233117457.shtml
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